The employment tribunal system 




The Employment Tribunal Service is part of the Ministry of Justice HM Courts and Tribunals Service (HMCTS). Most employment claims are heard by employment tribunals but some cases must be brought in the ordinary civil courts (the small claims court, the county court, or the High Court). 




The main kinds of claim that workers must take to the civil courts rather than the employment tribunal are:




• all breach of contract claims where the employment contract is ongoing;




• applications for injunctions to enforce legal rights; and




• claims for compensation for personal injury (unless the claim is for personal (usually psychiatric) injury caused by a breach of the Equality Act 2010 — see Chapter 7). 




Employment tribunals (industrial tribunals in Northern Ireland) were originally set up under the Industrial Training Act 1964 as an informal, accessible, quick and inexpensive way of resolving employment disputes, and a means of reducing strikes. They represented a deliberate policy shift away from resolving workplace disputes through collective industrial action towards an approach based on individual legal rights. 




An employment tribunal’s jurisdiction is based on statute. Without a legal statute giving the tribunal the power to deal with a particular issue, it is not allowed to consider it. An employment tribunal can hear some claims by employees for breach of the employment contract, but only if the breach arises or is outstanding on dismissal (see Chapter 3). Unlike the civil courts, where there is no cap, compensation for a successful contract claim in the employment tribunal is capped at a maximum of £25,000. There is also a general legal principle that if you bring a claim in one court, you cannot then take the same claim to another.




Employment tribunals are for claims by workers against their employer, not for claims by employers against workers. Employers must bring all their claims in the civil courts. The only time an employer can claim in the employment tribunal is where their employee has already issued a tribunal claim for breach of the employment contract. In these circumstances, the employer may be able to “counter-claim” against the employee for damages for breach of the same contract. Legal advice should be taken before issuing any tribunal claim. 




Employment tribunals have their own rules of procedure, the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 (see Chapter 14).




Employment tribunals hear a wide range of claims, including claims for unfair dismissal, unlawful deduction from wages, redundancy pay, discrimination, equal pay, claims relating to parental rights, working time claims, claims based on unlawful blacklisting and trade union rights. 




In May 2014, it became mandatory for prospective claimants to initiate Acas Early Conciliation (EC) as a first step in all tribunal claims (except claims for “interim relief”, see page 157) by submitting an Acas EC Notification Form. The purpose of Acas EC is to establish whether the parties are willing to try to resolve their dispute through Acas at an early stage without the need for a tribunal claim. 



The Acas EC procedure also operates as a mandatory gateway to the tribunal system. Without an Acas EC Certificate Number, the claim must be dismissed. Chapter 14 contains information on accessing Acas EC and making a tribunal claim. There is detailed information on the Acas website.




Without doubt the most important recent change in the employment law sphere has been the abolition of tribunal fees, following the landmark judicial review challenge by public services union UNISON in the Supreme Court in July 2017. Fees were abolished with immediate effect when the Supreme Court ruled that they were unlawful and unconstitutional — £27 million of fees became immediately repayable by the government. In a strongly worded judgment, the Supreme Court ruled that fees impede the common law and constitutional right to access justice, without which “laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory and the election of Members of Parliament may become a meaningless charade” (R on the application ofUNISON v The Lord Chancellor [2017] UKSC 51). The whole of society benefits when an individual enforces their rights in the employment tribunal, because the possibility of a legal claim checks the behaviour of employers who might be tempted not to comply with employment rights. 


Before the introduction of fees in July 2013, accessing the employment tribunal was free of charge. The fee regime required claimants (not employers) to pay substantial fees to issue a tribunal claim, for example, a fee of £1,200 to enforce the right not to be discriminated against at work. There were extra fees for any appeals. A remission process for those who could not pay was extremely ungenerous. Even if a claimant and her partner were both on the National Minimum Wage (NMW), she would not have qualified for full remission. 


Administrative arrangements put in place following the judgment to refund fees and to enable parties whose claims were struck out for non-payment to have those claims reinstated are explained in Chapter 14 (page 458). 


According to the government review of tribunal fees published in January 2017, between 3,000 and 8,000 people abandoned genuine claims after failing to resolve them through Acas EC because they could not afford the fee. This is reflected in the 67% collapse in single tribunal claims following the introduction of fees. It is therefore unsurprising that the abolition of fees produced a dramatic increase in single claims. In the period from October to December 2017, single claims rose by 90%, compared with the equivalent period in 2016. No additional resources have been provided to the tribunal system to manage the increased caseload, leading to a significant and growing backlog. There has also been a significant increase in multiple claims.


Giving oral evidence to the Justice Select Committee in December 2017, justice minister Dominic Raab told the committee that despite the Supreme Court judgment, the government intends to reintroduce fees at some level, to cover costs and to deter “spurious” claims.